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Bradley, Lisa --- "The Age of Criminal Responsibility Revisited" [2003] DeakinLawRw 4; (2003) 8(1) Deakin Law Review 71

The Age of Criminal Responsibility revisited

Lisa Bradley[*]

'Thank God we live in a country so hysterical about crime that a ten year old boy can be tried as an adult'.

Montgomery Burns, 'Who shot Mr Burns', The Simpsons



I. HUMAN RIGHTS AND THE JUVENILE DEFENDANT – A RELEVANT CONSIDERATION?

Australia is a signatory to two international instruments impacting on the administration of juvenile justice – the International Covenant of Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CROC). The impact of international human rights treaties on the substantive and procedural law in Australia is the subject of complex contemporary debate. International treaties do not form part of the domestic law, and there is thus no direct means of enforcing the obligations created. The absence of a regional enforcement body within the Asia-Pacific, combined with the breadth and generalised nature of human rights provisions, raises the question whether international law can have any impact on the provision of human rights to young offenders.[1]

The High Court has recognised however, that the principles contained within international covenants may impact on the rights of an accused person appearing before the domestic courts. In Dietrich v The Queen[2] the High Court discussed Article 14 of the ICCPR (the right to a ‘fair trial’) and held that if a defendant has not obtained legal representation, there may be an obligation on the judiciary to stay proceedings. As Bronitt and Ayers have noted, post-Deitrich, 'procedural fairness is no longer simply an aspirational value of the criminal justice system, rather it is a legally enforceable right'.[3]

This concept of procedural fairness permeates the ICCPR and the CROC. The specific provisions relevant to the administration of juvenile justice are as follows. Article 3(I) of the CROC states that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authoritative, or legislative bodies, the best interests of the child shall be a primary consideration. (emphasis added)

This provision has also been recognised by the High Court as having application in the domestic jurisdiction. In Minister for Immigration, Local Government and Ethnic Affairs v Ah Hin Teoh the High Court held that a child may have a legitimate expectation that when exercising discretionary powers, a decision-maker will consider their ‘best interests’ and treat the provisions of the CROC as a key consideration.[4]

Article 40 of the CROC specifically addresses the rights of the child in the context of criminal adjudication, placing the obligation on the State to adopt age appropriate criminal justice procedures:

State Parties [must] recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth... [in a manner] which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society’. (emphasis added).

Article 40(2)(a) states that an accused child shall have at least the following guarantee (among others): ‘the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal laws’. (Emphasis added)

The Beijing Rules were adopted by the UN General Assembly in 1985 and although not binding in international law, the UN invites states to adopt the rules as minimum standards by which juvenile justice administration should be judged. Standard 4:1 is the key provision for this discussion:

In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. (emphasis added)

The commentary to the Beijing Rules states that the ‘modern approach’ to criminal responsibility would be to ‘consider whether a child can live up to the moral and psychological components of criminal responsibility.... If the age of criminal responsibility is set too low... the notion of responsibility would become meaningless’. The United Nations has not identified therefore, a certain age at which criminal responsibility can be fairly attributed. However, the United Nations committee that monitors compliance with the CROC has been critical of nations that have an age of responsibility younger than 12 .[5]

The ICCPR contains Article 14, stating that all defendants must receive a ‘fair trial’. Article 14(4) states that ‘in the case of juvenile defendants, the procedures shall be such as will take account of their age and the desirability of promoting their rehabilitation’. What constitutes a fair trial, and the significance of these provisions in relation to the trial of a young offender, was the focus of the appeal to the European Court of Human Rights by Robert Thompson and Jon Venables in the case of T and V v United Kingdom.[6]

A The Thompson and Venables decision

In 1999, the European Court of Human Rights held that the rights of defendants Thompson and Venables were breached during the UK trial for the murder of two year old James Bulger. The instruments on which the decision was based were the CROC, the ICCPR, the Beijing Rules and the European Convention of Human Rights (ECHR). In considering this decision, it is important to note the procedural parallels between the Victorian and the UK jurisdiction. Both jurisdictions attribute criminal responsibility at the age of ten. Both remove homicide offences from the jurisdiction of the Children’s Court and hear the charges publicly, before a judge and jury. It is surprising therefore, that this decision has received only limited academic attention in Australia. Its implications for trial procedures and the administration of juvenile justice would seem to be considerable.[7]

Thompson and Venables’ crime is among the most publicised offences in recent history. Saturation media coverage resulted, in Young’s terms, in ‘a kind of national hand- wringing and guilt, as if the event was held to be indicative of some kind of contemporary malaise.’[8] The circumstances of the crime have been analysed extensively elsewhere.[9] Briefly, Thompson and Venables were ten years old, of average to below average intelligence and came from families in which they had suffered ‘great social and emotional deprivation’.[10] In 1993, they abducted twoyear old James Bulger from a suburban shopping centre, having previously tried to abduct at least two other young children. They assaulted the child over a four kilometre walk to a railway line, beat him to death and left him on the track. The abduction was recorded graphically on security video: ‘James Bulger’s trusting behaviour is returned to repeatedly in press reports, especially the moment, captured on the security video, when he put his hand in the older boy’s hand and walked away from the butcher’s shop’.[11]

The boys’ trial followed when they were eleven years old and both were convicted of murder. Significant procedural concessions were made to reflect the ages of the defendants and they were prepared for trial by visiting the courthouse and discussing procedures with social workers. The European Court of Human Rights outlined the result of these measures in the following description of the trial:

[It] was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants’ age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day.... [They] were allowed to spend time with their parents and social workers in a play area.[12]

The applicants’ key argument was that in light of their ‘youth, immaturity and state of emotional disturbance’ the trial was ‘unfair’ in the sense contemplated by the ICCPR, the CROC and the ECHR.[13] Further, each boy contended that:

the cumulative effect of the age of criminal responsibility, the accusatorial nature of the trial, the adult proceedings in a public court, the length of the trial, the jury of twelve adult strangers, the physical lay-out of the courtroom, the overwhelming presence of the media and public, the attacks by the public on the prison van which brought him to the court and the disclosure of his identity... gave rise to a breach...[14]

Whilst the Court did not accept the boys’ argument that they had been subjected to inhumane or degrading treatment, it concluded that the capacity to participate and engage within the trial arena is central to the provision of a ‘fair trial’. The applicants had argued that as they were only eleven, were suffering from post-traumatic stress disorder, had not received any therapeutic treatment and had been subjected to an intimidating and intensive public trial, they were unable to contribute sufficiently to their own defence.[15] Evidence was admitted that Venables cried throughout the trial and Thompson passed the time making shapes with his shoes. Significantly, the fact that the boys were represented by ‘skilled and experienced lawyers’, and the fact that procedures were altered to reflect their age, was insufficient to compensate for the inherent disadvantage of youth. The Court concluded (speaking of Thompson) that:

it is highly unlikely that the applicant would have felt sufficiently uninhibited, in the tense courtroom and under public scrutiny, to have consulted with them [his lawyers] during the trial, or indeed, that, given his immaturity and his disturbed emotional state, he would have been capable outside the courtroom of cooperating with his lawyers and giving them information for the purposes of his defence.[16]

The Court noted the paradox of attributing criminal responsibility to people who required a play area for use during breaks.[17] The judges concluded that:

Bringing the whole weight of the adult processes to bear on children... is a relic of times where the effect of the trial process and sentencing on a child’s physical and psychological condition and development... was scarcely considered, if at all.[18]

The key arguments raised by the parties are worth considering further. The UK Government argued firstly that the common law doctrine of doli incapax (incapable of crime)[19] was a remedy for the applicants’ complaint of an unfair trial.[20] The doctrine of doli incapax is an historical common law protection for young defendants and requires the prosecution to demonstrate that the child’s actions were conducted in the knowledge that they were seriously criminal or morally wrong.[21] The Court rejected the UK’s argument that doli incapax provides adequate protection for juvenile defendants. It drew a clear distinction between the boys’ ‘capability’ of crime at common law and the standards required in international law. The Court regarded doli incapax as insufficient protection for the applicants’ human rights and unsatisfactory in differentiating their capacities from those of adult defendants.

In relation to the age of criminal responsibility, the Court rejected the applicants’ argument that imposing criminal responsibility on a ten-year old was itself, a breach of international law. The applicants argued that given the Beijing Rules’ recommendation that the age not be set too ‘low’ and given that the most Member states attributed criminal responsibility at a substantially higher age, there was ‘a clear developing trend in international and comparative law towards a higher age of criminal responsibility’.[22] In deciding against this claim, the Court highlighted the lack of a common standard among Member states, among which the age of criminal responsibility ranges from seven years in Cyprus, ten years in the UK and Wales to eighteen years in Belgium. However, despite the Court’s reluctance to regard the UK’s age of criminal responsibility as a breach, it stressed that the Covenant is a ‘living instrument’ and that a ‘clear common standard’ could yet emerge.[23] Indeed, it might be argued that the Court’s reluctance on this point reflects the fact that the European Court of Human Rights is a regional body with particular concerns for the sovereignty of Member states.

What then, are the implications of this decision for Australian jurisdictions? Australia, as signatory to the ICCPR and the CROC, has responsibilities similar to those of the UK under the ECHR, particularly the key provision that a defendant must receive a ‘fair trial’.[24] Moreover, as the most established, judicially developed international court addressing human rights concerns, a decision of the European Court has considerable precedent value.[25] Hubble argued that in light of the decision, trying juveniles for homicide within an adult court must now be seen as inappropriate and a potential violation of human rights.[26]

This analysis could arguably be taken one step further. The Court’s key finding was that the defendants were unable to participate. As the next section will discuss, the passivity of juveniles within the criminal justice system is not exclusive to highly publicised trials for murder. If it can be shown that within Children’s Courts, juveniles are passive, uninvolved, and fail to exercise their procedural rights, this may be evidence that Australia’s juvenile justice system is not meeting the standard of active participation contemplated by the European Court. This raises the question of the appropriate age of criminal responsibility. To what extent do developmental factors impact on the conduct of juvenile defendants at trial? At what age can defendants genuinely meet the standard of participation and engagement articulated in the Thompson and Venables decisions?

II. JUVENILE JUSTICE – RHETORIC AND REALITY

The whole problem of trying children in adult courts is that the entire judicial process is solely based on evidence. ... [There is]... no sense that children are, in fact, any different from adults in their understanding of the proceedings and function of the court, and in their understanding of right and wrong. In fact, they are tried as small adults.[27] (Emphasis added)

Since the abandonment of the welfare approach to juvenile justice, juvenile jurisdictions in all Australian states have been based on the ‘justice’ or ‘rights and responsibilities’ model. In Victoria, under the Children’s and Young Person’s Act 1989, all charges (other than homicide) against a person younger than seventeen are heard summarily in the Children’s Court, which is a modified version of the Magistrates’ jurisdiction. The child defendant is theorised within the justice model as a free, rational actor, capable of defending their position within a court of law. Juvenile defendants are afforded the procedural rights available to adults including the right to representation, the right to silence, the right to defend their case and to force the prosecution to prove their case beyond a reasonable doubt. However, what Naffine describes as the ‘reality gap’ between these procedural rights and the way such rights are exercised in practice is crucial in understanding the operation of the system from the perspective of the child defendant.[28]

A Police/Juvenile Relations

For juveniles, policing is the ‘gateway’ to further involvement in the criminal justice system. In the eyes of young offenders, the police ‘are to all intents and purposes the legal system’.[29] Yet as O’Connor and Sweetapple argue, policing is far from a ‘straightforward, technical process’ but involves the employment of appreciable discretion and decision-making powers, including the decision to proceed a case to court.[30] Indeed policing has been regarded by many commentators as the context in which children are most vulnerable to the abrogation of their procedural rights. Many studies conclude that juveniles as a class are more suggestible to questioning than adults, particularly when the person asking the questions is an authority figure. [31] The ‘fundamental power imbalance’ between youth and police should be noted given this evidence.[32] To ensure that the accused is not overborne, the Crimes Act (Vic) requires police to advise all young suspects of their right to silence and of the right to have an independent person present during questioning. [33] A 1992 study found, however, that only 38% of juveniles questioned in Victoria had an independent witness in attendance.[34]

A highly significant discretionary police power derives from the juvenile cautioning program. This program has operated in the Victorian jurisdiction since 1959[35] and allows police appreciable discretion as to whether an alleged offence is diverted from formal criminal processing. In 1998/99, more juveniles were cautioned than appeared before the Children’s Court in Victoria.[36] A number of studies have examined the decision-making processes of police when considering a caution. Investigations in the late 1970s found that students who attended certain types of schools (high schools rather than technical schools, from well-regarded schools in prestigious suburbs) and children from nuclear families were well-represented in rates of cautioned youth.[37] This suggests that the socio-economic profile of the juvenile may be a significant (albeit sub-conscious) factor for police when considering whether to proceed with formal charges. However, Piliavin and Briar’s 1964 research is also important considering the aforementioned power imbalance between juveniles and police. This study argued that the extent of hostility or verbal resistance by the juvenile is the determinative factor for police in the decision to proceed to court.[38] This raises the question of whether police promote a culture of capitulation to questioning, regardless of the strength of evidence against the juvenile. Contemporary guidelines on cautioning indeed emphasise cooperation, a respectful attitude, parental involvement and an admission of guilt.[39] A National Youth Affairs Research Scheme Project interviewed 90 police Australia-wide on the factors prompting them to issue a caution and the findings confirm Piliavin and Briar’s seminal study – 96% stated that the child’s cooperation was the crucial factor and 89% were influenced by the child’s attitude.[40] There is no evidence in this study that the decision-making process is based on the strength of the case against the juvenile.[41]

The literature lends some support to the proposition then, that from the earliest contact with the criminal justice system, young offenders are encouraged to be compliant, cooperative and to admit guilt. This raises serious questions about the balance between diversionary policies and procedural fairness as the suspect may admit guilt in a cautioning interview without having had contact with a lawyer, without appreciating available defences or even what constitutes the charge against them.[42] Some commentators have argued that the physicality of policing, the uneven power relationship and the legitimate right to use force create in juveniles an expectation of police violence and mistreatment, encouraging abandonment of procedural rights.[43] O’Connor and Sweetapple’s extensive study of juvenile engagement with the criminal justice system found that children who are contrite and cooperative receive ‘routine policing’ but juveniles who ‘resist’ report threats, verbal and physical abuse. ‘For young people the fear of police violence is a reality. This fear feeds off and at the same time serves to reinforce the powerless position of the child’, they concluded.[44] James and Polk cite studies concluding that police regard their relationship with adolescents as inherently conflictual, as youth upset the ‘proper order of things’. In the words of one police officer, ‘I’d much rather chase burglars or robbers because they are scared of us’.[45]

B The Juvenile in Court

The extent to which child defendants exercise their procedural rights in the courtroom is an equally important question when evaluating the criminal justice system from a human rights perspective. In clear contrast to the ‘welfare model’ operational in all states up until the 1970-80s, contemporary juvenile justice systems in Australia emphasise the procedural rights of the defendant. At a theoretical level, this approach seems consistent with the obligations created in international law.

However, a review of the literature demonstrates a divergence between theory and practice within juvenile jurisdictions. This includes a consistent failure by juvenile defendants to exercise what is arguably the most important right afforded in the adversarial system – the right to be regarded as not guilty until proven otherwise.[46] Despite a paucity of official statistics in most states, qualitative studies illustrate that the rate of guilty pleas in juvenile jurisdictions is high. Naffine et al considered all available statistics and concluded that at most, 6% of juvenile defendants in South Australia in one year sustained a formal plea of notguilty, and in the order of 10% in NSW.[47] This raises the question of where the rhetoric of adversarial justice sits with the reality that the vast majority of juvenile defendants choose not to test the prosecution’s case or make use of their procedural rights. The determination of facts is a limited function of the Children’s Court.[48] This is partly because youth see a guilty plea as a ‘quicker’ and ‘less painful’ experience.[49] However, the Report of the National Inquiry into Homeless Children provides another perspective on why juveniles and their lawyers regard a guilty plea as attractive: a child who pleads not guilty may be in custody awaiting trial for a period greater than the sentence following a plea of guilty.[50]

As noted, the Children’s and Young Persons Act is supportive of legal representation. However, the availability of free legal advice through a Duty Solicitor does not appear to have increased the number of defendants prepared to contest the case by comparison with the representation of social workers under the welfare model.[51] Limited research has been conducted into the role that lawyers play in the Children’s Court in Victoria but a comprehensive study in the South Australian jurisdiction drew interesting conclusions as to how lawyers perceive their role in representing youth. Naffine and Wundersitz reported that lawyers in the jurisdiction saw their most important role not as advocating in court, but in providing pre-court advice as to the appropriate plea and negotiating with police to reduce charges.[52] The defendant cannot, of course, participate actively in this bargaining process. This disconnection arguably demonstrates a rhetorical gap between the legislation and the reality of summary prosecutions. Section 18C of the Children’s and Young Person’s Act requires the ‘participation’ of the defendant. Yet in the process that lawyers regard as most important, the defendant has next to no opportunity to exercise self-determination.

Interesting also, is research on lawyers perspectives on their work within juvenile jurisdictions. One study concluded that a significant portion of Children’s Court lawyers discount the importance of their work when contrasted with the ‘real game’ of advocating in the adult jurisdictions. [53] One lawyer in Naffine’s study justified this belief as follows:

Naturally kid’s courts matters aren’t as serious as other matters. I think [representing children] is very good grounding (for a new lawyer). You’re not playing for terribly high stakes.[54]

The vast majority of defendants before the Children’s Courts are represented by court- appointed, Legal Aid lawyers. The impact of limited resources on these practitioners may be an issue affecting the jurisdiction that warrants further consideration. One study found that in 65% of cases, a Legal Aid lawyer spent less than 15 minutes with a juvenile defendant before court.[55] No lawyer spent more than one hour with a defendant before trial. [56] Lack of resources may also create a culture in which a negotiated guilty plea is perceived to be in the best interests of all concerned, a milieu contributing to the low number of trials within the jurisdiction. Pressure may be placed upon the juvenile to acquiesce – what Naffine describes as ‘tacit encouragement’.[57] ‘Lawyers want [a guilty plea] so they can get on to the next matter.... Police want [it] because they don’t want their fellows pulled off the beat and [put] in the box’, said one lawyer in Naffine and Wundersitz’ study.[58] Another described ‘dangerously chummy relationships... much to the bewilderment of the child’.[59] Indeed, in the small number of cases that proceed to trial, lawyers have described themselves as ‘facilitators of justice’[60] rather than fervent advocates of their client’s cause. Naffine and Wundersitz’s observations were that ‘sparring’ between the prosecution and defence occurs rarely in the jurisdicton and indeed is discouraged by the Magistrate:

Another way in which lawyers acted as court facilitators was by keeping their clients ‘in line’. When a defendant was represented, the magistrate generally directed all questions to the lawyer, to the virtual exclusion of the youth. Interaction was therefore confined to the two professionals (the lawyer and the magistrate) to the exclusion of the amateur (the client).[61]

The central role of the defence lawyer then, appears to be pleading for mitigation – ‘secur[ing] for the child the best possible deal in the little time available’.[62] In reality, juveniles contribute little to their own defence. In Naffine’s words:

Rarely do children speak in court. Rarely are the police challenged. Typical of proceedings is speed, routine and an appearance of efficiency. Cases are often dealt with in a matter of minutes. As more than one lawyer has described the process, it is not unlike a ‘sausage machine’: child in; child out.[63]

This highlights a dilemma facing lawyers practising in children’s jurisdictions. On the one hand, the criminal justice system treats children as full citizens, responsible for and entitled to defend their actions. On the other hand, the child client is developmentally immature and may fail to participate or choose a course of action that is not ostensibly in their ‘best interests’. Commentators such as Moira Rayner have argued that the child advocate must resist the temptation to discount the client’s instructions[64] as the child has the same right to self-determination as an adult defendant. On the other hand, it must be questioned whether juveniles are equipped to understand the consequences of their decisions within the framework of administrative justice. Decision-making among younger defendants may be less independent than among adults and affected by psychosocial factors such as peer and parental pressure.[65] As the child’s primary source of assistance, does the lawyer have an ethical obligation to promote the child’s interests where those interests conflict with the child’s instructions? Lawyers are trained to advise but follow instructions. Law schools provide no specialised training for juvenile jurisdictions.[66] However, given the inherent vulnerability and limited life experience of a defendant as young as ten, questions may arise in children’s jurisdictions which challenge the dominant ethical philosophies of legal practice.

C Doli Incapax

The common law doctrine of doli incapax has been regarded as an antidote to the aforementioned dilemma, by excusing juveniles ‘incapable of committing crime’ on the grounds that they have not reached an ‘age of discretion’. In theory, in order to convict a child between the ages of ten and fourteen, the prosecution must first establish that at the time of the acts constituting the offence,[67] the child not only possessed mens rea, but also knew the act was seriously wrong.[68] After the age of fourteen, the onus shifts to the defence to prove the accused was not competent and did not have the requisite knowledge. Theoretically, the presumption of doli incapax acknowledges differing levels of cognitive maturity and protects the minor who was ‘merely mischievous’.[69] However, the doctrine has come under attack in a number of jurisdictions including Australia, both because it is argued that well educated, comparatively sophisticated youth must know the difference between right and wrong[70] and also because the presumption is rarely pleaded successfully. In C v DPP case[71] before the Queen’s Bench Division, Laws J argued for the removal of the doctrine from the common law. He argued

There can be no respectable justification for such a bizarre state of affairs. It means that what is by definition the exception is presumed to be the rule. It means that the law presumes nothing as regards a child between 10 and 14 except that he lacks the understanding of all his average peers. If that is the state of the law, we should be ashamed of it.[72]

Laws J argued that given universal education and the fact that most offences are heard before Children’s Courts, (with age appropriate procedures) the doctrine is out of step with the general law and community expectations. Advocates for reform argue that by the time a minor reaches the age of ten in common law jurisdictions, they have completed at least four years of formal education and must therefore, appreciate that criminal behaviour is ‘wrong’. Following the furore over the murder of James Bulger in the UK, that jurisdiction abolished doli incapax legislatively. In Australia, various reviews have recommended the presumption be amended, including reversing the onus of proof and reducing its application to children twelve and under.[73]

In reality, the presumption is rarely pleaded.[74] This is because under the operation of the rules of evidence, it works to the disadvantage of the juvenile when compared with an adult defendant. To assist the prosecution in rebutting the presumption, Courts have granted significant evidentiary concessions with the effect that highly prejudicial material including confessions and past offences is admitted. This has generally taken the form of transcripts of police interviews, where the defendant, speaking without the benefit of legal advice, has answered affirmatively that she knew her actions were ‘wrong’.[75] Evidence of prior cautions and convictions, highly inadmissible in most circumstances, has also been tendered. Bray CJ in M[76] stated that ‘the rule excluding evidence of past misbehaviour yields when that evidence is relevant to prove one or more of the elements of the crime in issue...’.[77] Given the court’s position on admissibility, it is important to recall earlier discussion of the vulnerability of juveniles in contact with police. Most admit guilt regardless of available defences. Yet where doli incapax is in issue, a pre-court police interview has gravity far beyond that experienced by an adult defendant.

To illustrate this point further, it is worth noting that both the nature of the alleged offence and the defendant’s conduct upon apprehension have been used to demonstrate the defendant knew right from wrong. This generally occurs without the admission of defendant-specific psychological testimony. For example, in C (a minor) v DPP[78] the fact that the defendant ran from police upon apprehension (perhaps indicating knowledge that the actions constituted an offence) was sufficient for the presumption to be rebutted. In the trial of Venables and Thompson for the murder of two year old James Bulger, the question of doli incapax was given limited attention because the crime alleged was the most serious on the statute books – it was argued that everyone must know the ‘wrongness’ of homicide.[79] However, the testimony of forensic or developmental psychologists is rarely tendered when considering doli incapax. In a questionable extension of the ‘opinion rule’, it is more likely for the prosecution to subpoena the defendant’s schoolteacher or parents to give evidence of a ‘moral’ education. For example, in the case of A and B before the Supreme Court of Victoria, the teacher of two boys accused of homicide by dropping rocks from a freeway overpass was called to give evidence that throwing rocks was prohibited in school.[80]

As the primary common law mechanism for protecting child defendants, doli incapax in its contemporary form, provides very limited refuge. Most importantly for a human rights analysis, doli incapax can provide no assistance to the State in meeting its obligation to provide the defendant with a fair trial. Doli incapax is not concerned with trial procedures or with the capacities of the child in the context of criminal adjudication and this is the standard against which the State will be judged. More cogent measures are clearly required to compensate for the disadvantaged position of child defendants within the criminal justice system.

III. ADJUDICATIVE COMPETENCE AND THE CRIMINAL TRIAL

A tall, physically mature juvenile with an adult appearance may very well have the decision-making abilities of a child. An adolescent who carries himself like an adult today may act like a child tomorrow.[81]

Even children who may appear to be lacking in innocence and vulnerability are nevertheless evolving, psychologically as well as physically, towards the maturity of adulthood.[82]

The criminal responsibility of pre-adolescents is an issue that should not be debated in a legal vacuum. The formulation of an age of criminal responsibility involves inherent assumptions about the development of children into adults that can be critiqued from multi-disciplinary perspectives. In light of the decisions in T v UK and V v UK, the discipline of developmental psychology and contemporary research on the cognitive and psychosocial influences on juvenile behaviour seem particularly pertinent. Whilst this is not the forum for a comprehensive investigation of psychological research, it is worth considering whether the analysis of the European Court on the capacity of juvenile defendants to receive a fair trial is reflected in the more recent psychological literature.

In recent decades, legal theorists have drawn upon developmental theory to explicate the moral culpability and amenability of young offenders. Theories of the development of moral reasoning devised by Piaget and Kolberg in particular, have been applied by criminal theorists through discussion of the moral legitimacy and utility of imposing sanction on juveniles.[83] However, contemporary research in the USA has broadened this focus in considering how developmental immaturity impacts on the ‘adjudicative competence’ of a juvenile offender.[84] These studies attempt to clarify how developmental immaturity tempers the behaviour and decision-making of a young defendant and to identify an age above which most defendants will appreciate the ramifications of the criminal trial. A number of US authors have identified this as a priority research area, due in part to a Supreme Court decision that it is ‘constitutional’ to sentence an adolescent to death. [85] Of course, elucidating the differences between juvenile and adult defendants is equally relevant to the questions emerging in international law that were discussed in the last chapter and to the formulation of a statutory age of criminal responsibility.

Studies of adjudicative competence have adopted a variety of methodologies to consider how observed differences in maturity impact on the functioning of juvenile defendants at trial. Adjudicative competence is a multi-faceted concept and different definitions have been employed. Steinberg and Cauffman define it as the ability to weigh the benefits of decisions, to demonstrate memory retention, to ‘extend thinking into the future’ and to ‘understand and articulate one’s own motives and psychological state in order to assist counsel’. [86] Scott et al emphasise psychosocial as well as cognitive factors including attitude to risk, and compliance with parental opinion.[87] In their most recent work (2000) Cauffman and Steinberg adopted the term ‘maturity of judgement’ to describe the interface of cognitive, social and emotional influences on juvenile functioning and decision-making.[88] Whatever definition is adopted, all the literature acknowledges the differing rates of development between adolescents and that developmental theory ‘rarely yields the sorts of dichotomous boundaries’ adopted by the criminal law. [89]

However, despite methodological and philosophical differences between the researchers,[90] their findings are generally congruous in relation to the age at which the competencies stated above develop in the ‘normal’ population.[91] Most researchers believe that an appropriate range of skills is usually present by the age of fifteen. Equally, there is consensus that such competencies are demonstrated by children younger than twelve in only the rarest of cases. [92] Significant differences have thus been identified in the key indicators of adjudicative competence between people in the early and the latter stages of adolescence.[93] Grisso and Scott note that ‘scientific authority indicates that, in general, the cognitive capacity for reasoning and understanding of pre-adolescents and many younger teens differs substantially... from that of older teens and adults’. [94] However, Steinberg and Cauffman (1996) contend that where the broadest view of maturity and competence is adopted, including the ability to limit impulsiveness and locate a decision within context, most youth could not be regarded as competent until the final stages of adolescence. They identify seventeen as the marker of adjudicative competence,[95] concluding that ‘comparisons between adults and adolescents should clearly differentiate between early and middle adolescents, on the one hand, and late adolescents, on the other’.[96]

A socio-economic component to competence has been identified also. Grisso argues that ‘progress toward completion of cognitive and moral developmental stages can be detoured or delayed by cultural, intellectual and social disadvantage’.[97] Juvenile offenders also show higher rates of disabilities (emotional, intellectual and learning disabilities) than the general US population and Scott and Grisso argue such disability contributes to ‘delays in the development of capacities for understanding, communication, and the ability to attend to the trial process as it unfolds’.[98] It is interesting to consider this perspective alongside the many studies in Australian jurisdictions that highlight the over-representation of socially, economically and emotionally disadvantaged youth within our criminal justice systems. Such studies are perhaps significant not only in relation to causes of crime, but also to the age at which defendants can be considered capable within the trial arena.[99]

A brief summary of developmental literature is generally congruent then, with the European Court’s analysis of the trial of Thompson and Venables. Whilst the nature of Thompson and Venables’ offence might be exceptional, a developmental critique suggests that the boys' responses to the trial situation were not. Until at least mid-adolescence, it is highly questionable whether juveniles are equipped to exercise their rights in the context of criminal adjudication. The implications of being ‘incompetent’ should not be understated. If juvenile offenders do not comprehend, for example, the value of the right to silence, the significance of a guilty plea, the role of court officials or the long-term consequences of any decision, the procedural rights awarded to them under an adversarial system are of next to no value.

IV. CONCLUSION

For it is possible to conceive of a different type of children’s court, one which wrests at least some of the control of the proceedings from the legal experts and hands it to the child; one in which proceedings are comprehensible, where children’s choices are therefore informed, and where the court carries an enforceable obligation to ensure that the interests of children are paramount.[100]

The purpose of this paper has been to question the attribution of criminal responsibility at the age of ten, considering the practical operation of Victoria’s juvenile justice system, influences in international law and the perspective of developmental psychologists on the capacities of juveniles in the context of criminal adjudication. It is submitted that the three strands of analysis converge in relation to one point – children and adolescents struggle to exercise the procedural rights afforded to them under an adversarial justice model.

What this study has not considered is the moral culpability of young offenders. This is the issue that lies at the heart of popular punitive philosophies and demands that the response to child criminality be retributivist. An international human rights perspective provides a fitting reminder, however, that culpability is only one aspect of the imposition of criminal responsibility. There is a concurrent obligation on the State to provide a fair trial and to ensure that not only the actus reus, but the mens rea and any available defences are carefully considered. The capacity of most adult defendants to assert their interests, and evaluate legal options presented by counsel, means that competence is a marginal issue in adult jurisdictions. This study concludes, however, that adjudicative competence is ‘at the heart of the matter for most cases involving juvenile defendants’.[101]

What is the appropriate response to these findings? An increase in the statutory age of criminal responsibility to mid-adolescence would be the most direct way of addressing the concerns raised in this paper. A higher age would both reflect standards emerging in international law and protect the least mature accused from the negative consequences of early contact with the criminal justice system. Whether such a change is achievable politically is the real question. Any increase in the age of criminal responsibility will inevitably allow more juvenile offenders to avoid retribution and the political consequences of such a move would be considerable.

There is also the question of how the state should respond to offenders who fall below the age of criminal responsibility. This would require further research attention. Whilst recidivism among juvenile offenders is comparatively lower than adults,[102] the goals of sentencing other than retribution and deterrence (reformation and community protection in particular) would still need to be addressed, but outside the criminal justice system. This is likely to require more intrusive powers within the welfare system – an approach taken by some European jurisdictions. Whilst this may sound like a radical policy change, it should be remembered that responding to serious or habitual crime by an eight or nine year old, would currently be the responsibility of welfare authorities. Extending this responsibility to encompass somewhat older offenders should not be too onerous.

In conclusion, the author submits that Victoria’s response to pre-adolescent criminality requires review. Young defendants are unequal partners in a criminal adversarial contest and existing legal principles and procedures are failing to address the special vulnerability of defendants who have not reached developmental maturity. At an ideological level, such inequality threatens the integrity of the trial process itself. At an operational level, the marginalisation of young offenders is a missed opportunity to focus on rehabilitation and to identify social and familial factors that have contributed to the young person’s criminality. Society and the youthful offender deserve better.


[*] BA, LLB(Hons); BA, LLB (Hons), LLM student (Monash University). Thanks to Dr Bronwyn Naylor, Senior Lecturer in Law, Monash University, for supervising this research.

[1] Christopher Darby, 'The Young Offenders Act 1993 (SA) and the Rights of the Child' [1994] AdelLawRw 9; (1994) 16 Adelaide Law Review 285, 286.

[2] [1992] HCA 57; (1992) 177 CLR 292.

[3] Simon Bronnitt and Maree Ayers, 'Criminal Law and Human Rights' in David Kinley (ed), Human Rights in Australian Law (1998) 120, 122.

[4] Minister for Immigration, Local Government and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353.

[5] Children and Homicide –Appropriate Procedures for Juveniles in Murder and Manslaughter Cases (1996). Quoted from Gregor Urbas, The Age of Criminal Responsibility (2000) Australian Institute of Criminology <http://www.aic.gov.au> . at 1 October 2002.

[6] T and V v UK.

[7] Gail Hubble, 'Juvenile Defendants: Taking the Human Rights of Children Seriously' (2000) 25 Alternative Law Journal 116, 120.

[8] Alison Young, Imagining Crime (1996) 111.

[9] Hubble, above n 9, and Young, above n 10 and J Neville Turner, 'The James Bulger Case: A Challenge to Juvenile Justice Theories' (1994) Law Institute Journal 734.

[10] T v V v UK, 19.

[11] Young, above n 10, 114.

[12] T and V v UK, 10.

[13] T and V v UK, 16.

[14] T and V v UK, 62. Article 3 of the European Convention of Human Rights prohibits inhuman and degrading treatment. It contains similar provisions to Article 40 of the CROC.

[15] T and V v UK, 80-82.

[16] T and V v UK, 88.

[17] T and V v UK , 33.

[18] T and V v UK , 33.

[19] The doctrine of doli incapax was operational in the UK at the time of the boys’ alleged offence and trial.

[20] T and V v UK , 58.

[21] Gorrie (1918) 83 JP 136 at 136; R (a child) v Whitty (1993) 66 Australian Criminal Reports 462, C v DPP [1995] UKHL 15; (1995) 2 WLR 383.

[22] T and V v UK, 62.

[23] T and V v UK, 71.

[24] Hubble, above n 9, 119.

[25] Steiner, H and Alston, P. International Human Rights in Context ( 2nd ed, 2000) 779-808.

[26] Hubble, above n 9, 120.

[27] Gretta Sereny, Cries Unheard (1997) 31-2.

[28] Ngaire Naffine. ‘Children in the Children’s Court: Can There be Rights without a Remedy’ in Philip Alston, Stephen Parker and John Seymour, Children, Rights and the Law (1992) 76, 90. See also P arsloe, Juvenile Justice in Britain and the United States: the Balance of Needs and Rights (1978).

[29]Harry Blagg and Meredith Wilkie, ‘Young People and Policing in Australia: the Relevance of the UN Convention on the Rights of the Child’ (1993) 3 Australian Journal of Human Rights 1, 1.

[30] Ian O’Connor and Pamela Sweetapple, Children in Justice (1998) 16.

[31] James Baxter, ‘The Suggestibility of Child Witnesses: A Review’ (1990) 4 Applied Cognitive Psychology 393.

[32] Darby, above n 3, 299.

[33] Crimes Act 1958 (Vic) ss 464A-464J.

[34] White and Alder, ‘Police Research and Methodological Issues’ (1993) 9 Socio-Legal Bulletin 12. Similar rates (around 30-35%) were recorded in four Australian jurisdictions.

[35] Department of Justice, Portfolio Planning, Victoria, Statistics of the Children’s Court of Victoria 1997/8 and 1998/9, 10. Also available online at <http://www.justice.vic.gov.a u> ) at 1 October 2002.

[36] 8397 juveniles were cautioned and 6246 juveniles appeared before the Children’s Court. Statistics of the Children’s Court of Victoria 1997/8 and 1998/9, above n 37, 10.

[37] Steve James and Ken Polk, ‘Police and Young Australians’, in Duncan Chappell and Paul Wilson, Australian Policing: Contemporary Issues (1996) 180, 187.

[38] I Piliavin and S Briar, ‘Police Encounters with Juveniles’ (1964) 70 The American Journal of Sociology 206. Quoted from James and Polk, ibid 188.

[39] James and Polk, above n 39, 188.

[40] Rob White, ‘The Police’ in Christine Alder (et al) Perceptions of the Treatment of Juveniles in the Legal System (1992). Quoted from James and Polk, above n 39, 188.

[41] There is also a growing body of literature concluding that Aboriginality is the single greatest indicator whether a particular child will be charged rather than cautioned. See especially Fay Gale, Rebecca Bailey-Harris and Joy Wundersitz, Aboriginal Youth and the Criminal Justice System: the Injustice of Justice? (1990).

[42] Joy Wundersitz, ‘Pre-Court Diversion: The Australian Experience’, in Ian O’Connor and Allan Borowski, Juvenile Crime, Justice and Corrections (1997) 270, 279. Further, the author acknowledges that many of these concerns may apply equally to adult defendants and could even be regarded as endemic to the criminal justice system.

[43] See O’Connor and Sweetapple, above n 33; and Naffine, above n 30.

[44] O’Connor and Sweetapple, above n 32, 21-22.

[45]WK Muir, Police: Street Corner Politicians (1977). Quoted from James and Polk, above n 39, 193.

[46] Naffine, above n 30, 84.

[47] Ngaire Naffine, Joy Wundersitz, and Fay Gale, ‘Back to Justice for Juveniles: the Rhetoric and Reality of Law Reform’ (1990) 23 Australian and New Zealand Journal of Criminology 193, 193-205.

[48] John Seymour, ‘Children’s Courts in Australia: their current role and functions’. In Allan Borowski & Ian O’Connor, Juvenile Crime, Justice and Corrections (1997) 292, 301.

[49] Naffine (1992) above n 30, 85.

[50] Phillipa O’Dea, ‘Responsibilities, but what about Rights’ (1992) 3 Polemic 36.

[51] Ngaire Naffine and Joy Wundersitz, ‘Lawyers in the Children’s Court: an Australian perspective’ (1991) Crime and Delinquency 374, 380-381.

[52]Ibid.

[53] Naffine, above n 30, 87.

[54] Ibid.

[55] Michelle Huntsman, ‘Children’s Court’ (1992) 3 Polemic 19, 20.

[56] Ibid.

[57] Naffine, above n 30, 85.

[58] Naffine and Wundersitz, above n 53, 383.

[59]Ibid 383.

[60] Ibid 387.

[61] Ibid 388.

[62] Ibid 391.

[63] Naffine, above n 30, 87.

[64] Moira Rayner, ‘Taking Seriously the Child’s Right to be Heard’ in P Alston and G Brennan, The UN Children’s Convention and Australia (1991) 34, 34–39. See also ‘Working with Children in the Criminal Justice System’ (July 2000) Law Society Journal 30, 30-31.

[65] Elizabeth Scott and Thomas Grisso, 'The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform’ (1997) 88 Journal of Law and Criminology 137, 137-145.

[66] Naffine argues that the ‘expository tradition in legal education’ results in lawyers who are not trained to consider ‘the law in action’ and subjects that focus on the operation of the law have a low status within law schools. Naffine, above n 30, 93.

[67] Terence Bartholomew, ‘Legal and Clinical Enactment of the Doli Incapax Defence in the Supreme Court of Victoria, Australia’ (1998) 5 Psychiatry, Psychology and the Law 95, 99.

[68] Brett, Waller and Williams, Criminal Law: Text and Cases (8th ed 1997).

[69] See C (A minor) v DPP [1995] UKHL 15; (1995) 2 WLR 383.

[70] The NSW Chief Magistrate, for example, has argued the presumption should only apply to children younger than 12 as modern children with access to education, television and radio cannot be compared with ‘a 12 year old in rural Britain in 1769’. ‘Children of 12 may be Tried as Adults’, Sydney Morning Herald, 11 January 2000, 3.

[71] 1994 3 WLR 383.

[72] Ibid.

[73] See New South Wales Attorney-General’s Department, Criminal Law Review Division (CLRD) 1999, ‘A review of the law on the age of criminal responsibility of children’, available at <http://www.lawlink.nsw.gov.au/clrd> at 1 October 2002. McLeod argues that the doctrine has become redundant in Canada because it is never pleaded. J McLeod, ‘Doli incapax: the Forgotten Presumption in Juvenile Court Trials’ (1980) 3 Canadian Journal of Family Law 253, 253-279.

[74] According to one author, doli incapax was pleaded in only two cases in Victoria during the 1990s – Angela O’Brien, Presumption of Doli Incapax: Is it Outmoded or Forgotten? (Honours thesis, Monash University, 1996) .

[75] Patricia Blazey-Ayoub, ‘Doli Incapax’ (1996) 20 Criminal Law Journal 20, 35.

[76] 1977 16 SASR, 589.

[77] Ibid.

[78] [1995] UKHL 15; 1995 2 WLR 383.

[79] The evidence of one consultant psychiatrist (Dr Eileen Vizard) was admitted by subpoena. She expressed the opinion that Thompson was of average intelligence and would have known the difference between right and wrong. She also said he was suffering from post-traumatic stress disorder. The defendants’ school principal and teacher gave evidence that the boys had been taught that hitting another person was ‘wrong’. T and V v UK, 11.

[80] Bartholomew, above n 69

[81] L Steinberg and E Cauffman, ‘A Developmental Perspective on Jurisdictional Boundary’ in Jeffrey Fagan and Franklin Zimring, The Changing Borders of Juvenile Justice (2000) 379, 384.

[82] T v UK, per Lord Reed.

[83] See J Piaget, The Moral Judgement of the Child (1955) and L Kohlberg, Stage in the Development of MoralThought and Action (1969).

[84] A major study of adolescent adjudicative competence has recently been funded by Temple University in the USA. For a media release on the group’s work, see <http://www.temple.edu/temple_times/4-5-01/juv.html> at 1 October 2002.

[85] Stanford v Kentucky (1989) 489 US 361.

[86] Laurence Steinberg and Elizabeth Cauffman, ‘Maturity of Judgement in Adolescence: Psychological Factors in Adolescent Decision-making’ (1996) 20 Law and Human Behavior 249.

[87] Elizabeth Scott, N Dickon Reppucci and Jennifer Woolard, ‘Evaluating Adolescent Decision Making in Legal Contexts’ (1995) 19 Law and Human Behavior 221, 221-244.

[88] Elizabeth Cauffman and Laurence Steinberg, ‘(Im)maturity of Judgement in Adolescents: Why Adolescents May Be Less Culpable than Adults’ (2000) 18 Behavioral Sciences and the Law 743.

[89] Steinberg and Caufffman, above n 83, 381.

[90] See generally, Jennifer Woolard, N. Dickon Reppucci and Richard Redding, ‘Theoretical and Methodological Issues in Studying Children’s Capacities in Legal Contexts’ (1996) 20 Law and Human Behavior, 219.

[91]Steinberg and Cauffman, above n 83.

[92] See Thomas Grisso, ‘The Competence of Adolescents as Trial Defendants’ (1997) 3 Psychology, Public Policy and the Law; Scott, Reppucci and Woolard, above n 90. See also Scott and Grisso, above n 68, 137-189.

[93] See Grisso, above n 95; and Scott, Reppucci and Woolard, above n 90; and Scott and Grisso, above n 68 and; Steinberg and Cauffman, above n 89.

[94] Elizabeth Scott and Thomas Grisso, 'The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform' (1997) 88 Journal of Criminal Law and Criminology 1 ,11.

[95] Steinberg and Cauffman, above n 89, 268. Their definition of maturity included responsibility, temperance and perspective as well as cognitive competence.

[96] Ibid 269.

[97]Thomas Grisso, ‘Society’s Retributive Responses to Juvenile Violence: A Developmental Perspective’ (1996) 20 Law and Human Behaviour 229, 229-247.

[98] Scott and Grisso, above n 96, 22.

[99] See, e.g., Jennifer Smith and Ian O’Connor, 'Child abuse, youth homelessness and juvenile crime' in Allan Borowski and Ian O’Connor, (ed) Juvenile Crime, Justice and Corrections (1997) 121 and Joy Wunderstiz, 'Juvenile Justice' in Kayleen Hazlehurst (ed) Crime and Justice: an Australian Textbook on Criminology (1996) 113, 134.

[100] Naffine, above n 30, 96.

[101] Steinberg and Cauffman, above n 83, 391.

[102] Joy Wundersitz, 'Juvenile Justice in Australia: Towards the New Millennium', in Duncan Chappell (ed) Crime and the Criminal Justice System in Australia: 2000 and Beyond (2000) 132. The majority of juvenile offenders will come into contact with the criminal justice system only once. Recidivism is considerably higher, however, among indigenous youth in Australia than non-indigenous youth – 60% of Aboriginal youth offenders come before the courts more than once.


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